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SECTION 3 - Why do we draft as we do in parliamentary systems?

PREVIEW

Drafting styles in jurisdictions based on the parliamentary system, like the common law itself, have their roots in the English legal system. Again like the common law, legislative drafting has evolved over a long period of time and through the experience brought by legislative counsel working in many jurisdictions. Practices that are now taken for granted are often best explained by their historical origins. In learning how to go about the task today, it helps to have an understanding of the factors which have led to present practices.

We need to think critically about the way legislation is drafted in order to see where sensible improvements can be made to inherited drafting practices. If we are to do that, we must have a clear idea as to the objectives we should be seeking to achieve whenever we are drafting a piece of legislation.

Section Objectives

By the end of this Section, you should be able to do the following:

• describe the way legislative drafting developed and how that development has influenced the way that we draft today;
• provide an overview of the principal characteristics of legislative drafting in parliamentary jurisdictions;
• establish the principal objectives for which legislative counsel should work and the fundam­ental practices that are most likely to contribute to achieving them.

Essential Questions

This Section is divided into four subsections organised in terms of a series of questions:

1. HISTORICAL DEVELOPMENT OF LEGISLATIVE DRAFTING

• How did legislative drafting develop in parliamentary jurisdictions?

1. THEORETICAL FOUNDATIONS

• What were the premises of Coode’s approach?
• What were his components of a legislative sentence?
• What were his guidelines for forming sentences?
• How have later legislative counsel built on Coode’s approach?

1. PRINCIPAL CHARACTERISTICS

• What are the principal characteristics of this form of drafting?

1. DRAFTING OBJECTIVES

• What should be the objectives for drafting in the 21^st Century?
• What do users look for from legal writings?
• How can legislative counsel meet these expectations?
• Are these objectives equally important?
• How can we best achieve these objectives?

Studying this Section

This Section probably contains a good deal that is new to you. In particular, it describes the systematic approach developed in England in the 19th century to composing legislative sentences and structur­ing legislation. This still underlies much of what we do today. We will work with these matters again in Module 3 when we look at them in more depth. At this stage, it is sufficient to understand the essential approaches described here, rather than to put them into practice. You will have plenty of opportunity for that later. For now, you need to see how these approaches have influenced current practices and given rise to the distinctive character­istics of drafting in the jurisdictions based on the parliamentary model..

This Section also looks at the qualities we should be trying to incorporate into our drafts. These considerations, and the ways in which they can be best addressed, recur throughout the Materials. You will have many opportunities in the Modules that follow to develop techniques for these purposes. Studying this Section is designed to provide you with an initial frame of reference for your subsequent work and with a clear perception of what standards you should be trying to achieve.

1. Development - How did legislative drafting develop in parliamentary systems?

Drafting in jurisdictions based on the parliamentary model has its origins in English practice, which was exported through the colonial legal system. It remains strongly influenced by that practice, no doubt because of the extensive range of experience and tradition.

Early drafting

Early legislative drafting in England (from the 15th century) was largely undertaken by Judges and conveyancers. They brought to it the wordy and legalistic style they used in the deeds and court instruments of the time - a practice encouraged by payment by the length of the document. These features were accentuated from the 17th century when, in the struggles between the King and the Parliament, the judges cut down the generality of statutory language (which tended to favour the Crown) by strict construction. In response, Parliament sought the same objectives by specifying in detail and repeating at length the particular matters that would have been covered by rules drafted in broad terms.

By the 19th century, lay readers especially found the contents of most statutes unintelligible. Legislation generally suffered from poor arrangement and structure, an inconsistent and elaborate mode of expression, a dense and unhelpful format and obscure language. Blocks of unbroken text contained lengthy sentences in which many matters were compressed (for a process of separate enactment was needed for each sentence). They were also written in artificial and legalistic language.

19th century developments

The 19th century was one of great legal change; drafting was caught up in that process. A better style was deliberately developed to counter the shortcomings in legislation, which Jeremy Bentham trenchantly criticised in the early years of that century. It was facilitated by the gradual professionalisation of the work, which began with the creation of the Office of Parliamentary Counsel, in the United Kingdom, in 1869.

In this period, we may mention four influential figures:

• George Coode, a barrister in private practice, who undertook a major revision of the poor laws, which led to On Legislative Expression (1845 & 1852) (This is reprinted in E A Driedger, The Composition of Legislation, 1976).
• Sir Henry Thring (later Lord Thring), a barrister who drafted for the Home Office from 1861 and by whom the Office of Parliamentary Counsel was founded. He wrote Practical Legislation, 1877, 1902.
• Sir Mackenzie Chalmers, who drafted major commercial statutes in the later part of the century, such as the Sale of Goods Act 1893, which were adopted widely outside the United Kingdom.
• Sir Courtenay Ilbert, also of Parliamentary Counsel, who wrote Legislative Methods and Forms, 1901.

All made significant contributions to a much improved approach to common law drafting in the later 19th and the early 20th centuries. Their writings and legislative drafts had considerable influence throughout the then British Empire.

Colonial developments

Drafting was often undertaken by law officers who had gained their training in English law, and who looked to English drafting practices. Some improvements in drafting occurred independently in colonial jurisdictions, although they were not usually followed in England. For example, the Indian Penal Code 1860, Indian Evidence Act 1872, Indian Contract Act 1872 and the Code of Civil Procedure, Code of Criminal Procedure 1898 demonstrated that a complete body of common law could be reduced to lucidly written rules that were accessible to those without a legal training. The legislative counsel of that time also devised ways to enable legal principles to be enunciated and their application to be understood, notably by the addition of explanatory material and examples. Neither trend carried over into the first half of the 20th century.

19th century improvements

Sound groundwork was provided by Coode. As a result of his efforts, theoretical under­pinnings to drafting practice were provided for the first time. In particular, he formulated a framework for composing legislative sentences, asserting that each should contain standard components and showing how they should be consistently deployed. We take account of those ideas in these Materials.

Coode made many suggestions designed to produce more reliable drafting practices. They included:

• the prime virtues in drafting are simplicity and directness of expression. Common patterns of English should always be used;
• sentences should follow each other in a logical sequence, for example, in accordance with the chronological order of the events to which they relate;
• separate legal sentences should be used to provide for different rules relating to different persons or different events and there should be one sentence for each class of case, in which a distinct person is subjected to a distinct legal provision;
• if a legal person is engaged in several actions in the same set of circumstances, the series of actions should be gathered in a single sentence, in the order in which they will occur;
• artificial or arbitrary definitions of terms should be avoided. Instead of providing certainty of meaning they can conceal important effects;
• definitions should challenge attention by being placed before, not after, the matter to which they relate; defined terms should be identified by some distinguishing mark;
• provisos should be avoided; their only legitimate use is to create an immediate exception to a general proposition.

Subsequent developments

Later legislative counsel, Lord Thring in particular, pioneered a number of practices that complement Coode's proposals. These included:

• legislative sentences should be short, with only one sentence to a section (or, if the section is divided into subsections, to each subsection); this was facilitated by the statutory permission in 1850 to use sections and subsections (as exemplified by the model Interpretation Act, section 10);
• there should be a unity of purpose between the subsections of the same section.; the main proposition in a section should be contained in the first subsection; qualifications and exceptions should be contained in subsequent subsections.
• lengthy Acts should be divided into Parts and headings ascribed;
• distinct matters, which have no connection with each other, should not be dealt with in the same Act;
• the simplest expressions found in ordinary composition will generally be adequate.
• Latin terms and unnecessary technical expressions should be avoided;
• the same term should be used to describe the same thing; a different term should be used to describe a different thing.

Mid-20th century developments

The major common law jurisdictions seemed to lose touch with many of these basic precepts of sound drafting, at least in the second half of the 20^th century. A number of the features earlier criticised re-appeared, such as long-winded and complex statutes using compressed sentences, elaborate detail, poor structure, and obscure language and terms. This was undoubtedly brought about by the increasing demand for wide-ranging legislation to regulate new activities or to introduce fundamental social change. These shortcomings may have been a little less apparent in some jurisdictions where sound practices developed by Attorneys-General during the colonial era often continued to be influential (Alison Russell, Legislative Drafting and Forms (4th ed. 1938)).

Principled drafting

To counter these trends, it has been proposed that legislation should move away from the traditional styles. It has been urged that greater prominence should be given to statements of principle, rather than a detailed elaboration of rules to regulate the legal relationships of those concerned with or affected by the legislative scheme (for example, Sir William Dale, Legislative Drafting: A new approach (1984)). There is little evidence that such a radical shift has been adopted. The principal reason commonly given is that this approach may produce less detail in the legislation as to responsibilities of those affected, but in consequence:

• that detail might have to be settled by the courts or by Executive direction or decision;
• this could lead to a reduction in the authority of the Legislature, which constitutionally and traditionally is the body expected to settle such matters.

Plain Language

Plain Language has developed in the latter part of the 20^th Century in a host of areas of writing, including in legislative drafting. In this context, it entails a return to the principles put forward by Coode and Thring and was pioneered by E. A. Driedger, Composition of Legislation, (2nd ed, 1976)). In particular, there have been serious efforts in some countries:

• to work out how those principles can once more be applied to the legislative circumstances and drafting requirements of today; and
• to eliminate those recent practices that have tended to defeat the aims behind those principles.

This is particularly evident in Australia, where the impact of the "plain language" movement on drafting has been considerable (see for example the website of the Office of Parliamentary Counsel: http://www.opc.gov.au/plain/index.htm). This followed from a wider concern about the clarity of legal documents, especially those intended for direct use by members of the public. The Law Reform Commission of Victoria conducted a thorough examination of this matter (Report on Plain English and the Law (1987)). As part of this exercise, the Commission prepared a Manual for Legislative Drafters which aims “to help people involved in legislative drafting to prepare Acts which communicate their message efficiently and effectively.”

Proposals on this matter have not been limited to the composition of legislation. Others have been made with respect to the organisation and formatting of legislation to enable the contents to be more readily understood (Law Reform Commission of Victoria, Report on Access to the Law: the structure and format of legislation (1990)). Other sources are mentioned in the Bibliography Hyperlinkin the Supplementary Materials.

These initiatives have been accompanied in Australia by general directions on drafting from Attorneys-General to legislative drafting offices, which have themselves begun to develop contemporary drafting techniques to improve the legislative expression and the structure and presentation of legislation. These Materials take account of these developments.

2. Theoretical Foundations

The early developments established theoretical underpinnings for the common law approach. They also provided a coherent body of principles with respect to legislative syntax (the way that legislative sentences should be structured) and generally relating to legislative expression. The later developments built upon these foundations.

Since the groundwork for our current approach was done by Coode, it is valuable to look at his analysis. Coode believed that a more acceptable style would be practised if certain principles were followed in writing all legislative sentences. The following summarises, first, the theoretical premises upon which he built and then the principles themselves.

What were the premises of Coode’s approach?

Coode's approach contained these premises:

• Aim of legislation: the overall aim of legislation is to regulate relationships between legal persons (those recognised by law as capable of having legal rights and obligations) and, in doing so, "to secure some benefit to some person or class of persons".
• Methods of securing benefits: there are two alternative ways of securing benefits:

1. confer an appropriate right, privilege or power directly upon the person or class of persons that is to benefit; or
2. impose an obligation or liability upon a different person or class, so that a corresp­onding benefit results, indirectly, in favour of the person or class that is to benefit.

• Basic structure of a legislative sentence: typically, a legislative sentence should provide specifically for one or other of these alternatives, but not both, since express provision of one normally gives rise to the other by implication. But "no single sentence in a law can do anything else than one or both of these."
• Functions of the legislative sentence: typically, a legislative sentence should (in addition to defining one of the necessary elements of the relationship between persons or classes by these means):

• prescribe the limits to the stated right, privilege, power, or duty and liability; and
• designate the circumstances in which it arises and the conditions under which it operates.

Example 1

12. If a court awards the custody of a child over the age of 14 years to any grandparent of the child, that grandparent is liable to maintain the child until the child reaches the age of 18 years or obtains in full-time employment.

The rule in this example confers a benefit upon certain children by imposing a liability on their grandparents. The sentence also determines when the liability arises and when it ceases, by stating the circumstances and conditions in which the rule operates.

What were Coode’s components of a legislative sentence?

To fulfil these general objectives, Coode made proposals concerning the components of legislative sentences and offered a number of other guidelines about the way sentences should be structured.

Coode asserted that legislative sentences ought to have two core components, and may have two optional components:

Core components

Legal subject

A rule in a sentence must be directed to a subject who can respond to it. So, the subject must be one recognised by the law as a person upon whom a right, privilege or power can be conferred or an obligation or liability imposed. The person to whom the rule is directed is its legal subject. Grammatically, the legal subject takes the form of a noun, modified as required to add greater precision; it is often also made the grammatical subject of the sentence.

Legal action

The legal action states what the legal subject may or may not, or must or must not, do, in order to confer the intended benefit. Grammatically, this takes the form of a verb, with an auxiliary verb that directs how the subject is to be affected: "must" (or "must not") or "may" (or "may not"). The verb too may be modified (for example, by the addition of an adverb) to give greater precision. This constitutes the principal predicate in the sentence.

Example 2

The subject and the action (predicate) are highlighted in the following:

10. A police officer [= subject] may arrest a person who is committing an indictable offence [=action/predicate].

Optional components

If a legislative sentence contains only a subject and an action, it constitutes a universal rule. Legal rules, however, are usually intended to have effect in particular circumstances or when particular conditions arise. So, if the rule is not to have universal effect, one or both of the following must be added:

Case

The case prescribes the circumstances to which the rule is confined or in which the rule has its effect. Grammatically, this may take the form of a subordinate clause, beginning with "where" or "when" and having its own subject and predicate.

Condition

The condition prescribes actions which, when performed, cause the legal rule to take effect or not take effect. Grammatically, this may take the form of a conditional subordinate clause, beginning with "if" or "unless" and having its own subject and predicate.

There is considerable similarity between cases and conditions, particularly in terms of their functions. The essential difference is that the latter focuses on some action that triggers or limits the application of the rule as opposed to some more general set of circumstances.

Example 3

12. If a motor vehicle is illegally parked in a public park [=case], an enforcement officer may request the operator of the vehicle to remove it from the park, unless the operator provides the officer with a reasonable explanation for its presence in the park [=negative condition].

What were Coode’s guidelines for forming sentences?

It is scarcely surprising with this general approach that common law legislation is made up of a series of detailed and specific provisions directed towards required or permitted behaviour of persons or classes of persons identified in the legislation. The absence of expressed general principles in the legislation is understandable. Readers of statutes drafted in parliamentary jurisdictions will find these features familiar.

Coode's guidelines on how to select the components of legislative sentences should also be familiar to users of Commonwealth legislation, although a number of them have been modified by later practice.

Selecting the legal subject:

• The subject should be a legal person

The legal subject must be a legal person (individual or body) that the law recognises as capable of bearing rights, privileges, powers, liabilities or obligations. It can, therefore, never be, for example, an animal or an inanimate thing (other than a ship). Rules are intended to affect the behaviour of persons; they cannot be directed to dogs or disorders.

• The legal person should be the grammatical subject of the sentence

Typically, the legal subject should be the grammatical subject of the sentence. But an inanimate thing can be made the grammatical subject, if the legal person affected is obvious from the sentence.

• There should be only one legal subject in any sentence
• The subject should be placed in a prominent position in the sentence

The subject should occupy a distinctive position in the sentence, preferably at or near the beginning of the sentence and before the verb (predicate).

Example 4

A person must not use a guard dog at any premises unless the dog is under the control of that person at all times while it is being so used.

The grammatical subject of the sentence is a legal person (applying to everybody with legal personality); it is in the most distinctive possible position in the sentence - at the beginning.

• The subject should not be obscured

The legal effects of the rule will be less clear if the legal subject is obscured, e.g. because an inanimate thing, rather than the legal person, is made the grammatical subject.

Example 5

It is unlawful to use a guard dog on any premises unless the dog is under the control of a person at all times while it is being so used.

A guard dog must not be used on any premises unless the dog is under the control of a person at all times while it is being so used.

These two versions of the same rule obscure the precise persons to whom the prohibition applies. (Is it the owner of the premises, the handler, the user or the owner of the dog?). No legal person is identified. The grammatical subjects are the inanimate "it" (sometimes termed a “false subject”) and a non-person "guard dog". A sounder approach is the one in Example 4.

Selecting the legal action:

• The action should contain a specific auxiliary verb

The legal action should contain a verb that is qualified by one or other of the following auxiliary verbs:

• "must" or "must not" for: commands to act or not to act (duties);
• "may" or "may not" for: rights, privileges, and powers (or absence of them)
• "is" or "may be" for: liabilities.

• The verb should be in the active voice

The verb should, wherever possible, be used in the active voice; this facilitates making the legal subject into the grammatical subject and expresses the effect on the legal subject more positively. However, if the rule is to require the legal subject to submit to, or to be subjected to, some action or liability, the passive voice may be used, so long as it is clear, or if it is irrelevant or unnecessary to state, by whom that action is to be taken.

Example 6

A person trespassing on land occupied by a railway company may be prosecuted.

A person arrested under this Act must be brought before a magistrate as soon as practicable.

• The action can contain several verbs

More than one verb (with the appropriate auxiliary) may be used in a legislative sentence to provide for the performing of a series of related legal actions.

Example 7

The police officer may arrest a person whom the officer suspects to have committed an offence, but must bring that person before a magistrate as soon as possible.

Selecting the case

• The case should take the initial position in the sentence

Where the rule is to operate in specific circumstances only, those circumstances should be described before anything else in the sentence, as they provide the context for everything that follows in the sentence.

• The case should always be speaking

The verb in a case clause should be expressed as always speaking (describing a current, rather than a future, state of affairs). It should not use the auxiliary verbs "must" or "may", which must be reserved for the legal action.

• The case should be in the present tense, or when required, a past tense

The present tense should be used, if the circumstances described are concurrent with the legal action. The perfect tense should be used if the circumstances described are to have occurred before the legal action.

• The case should begin with an appropriate introductory term

A case clause should usually be introduced by the conjunction "where" (where it describes circumstances) or "when" (when it describes a time at which or by which circumstances occur).

Example 8

When a police officer sees a person committing an indictable offence or where a reputable person has reported to the officer that a person has committed an indictable offence, the officer may arrest that person.

The sentence in this example contains two cases and illustrates both the recommended uses of verbs and introductory terms.

Selecting the condition

• The condition should usually be a condition precedent

If the rule will only take effect if some person has performed some action that triggers it, the subordinate clause that describes it is a condition precedent.

• It should be placed towards the beginning of the sentence

It should precede the legal subject/legal action, since the rest of the sentence has effect only if the condition is met.

• It should always be speaking and, typically, in the present tense

The auxiliaries "must" and "may" should not be used. If the condition occurs at the same time as the rule is triggered off, the present tense should be used. Only if the action has already happened, is a past tense needed.

• Conditions (if more than one) should be set out in a logical order

If there are several conditions, they should be set out in a logical sequence (for example, in the chronological order of their occurrence or of their performance).

• The condition should begin with an appropriate introductory term

A condition clause should be introduced by the conjunction "if", unless the clause takes the form of an exception or states a condition under which the rule does not take effect; then "unless" is needed.

Example 9

If a court, after dismissing a case, considers that the charge was frivolous, it may order the complainant to pay to the accused person a reasonable sum as compensation for the expense to which the accused may have been put as a result of the charge, unless the accused has incurred no expenses.

The sentence in this example contains a condition precedent and an exception (negative condition). This too illustrates both the recommended use of verbs and introductory terms.

How have later legislative counsel built on Coode’s approach?

Later legislative counsel have built upon Coode’s approach, and they have also modified it. Two factors helped in this respect.

1. Coode's approach assumed that subject, action, case and condition would be contained in the same sentence, almost certainly influenced by the requirement that each section of an Act could contain only one sentence. After sub-sectioning was authorised, legislative counsel found less need to compress both the main proposition and its exceptions and qualifications into the same sentence. They also gained more flexibility by being able to compose related sentences in the subsections of a section. These trends were strengthened by the use of paragraphs to divide the contents of individual sentences
   

1. Coode used his own terms to describe components of legislative sentences. Later legislative counsel have rightly relied upon standard grammatical terms. This emphasises, as Driedger insists, that "there is no special language for statutes". As a result, legislative counsel now tend to use the following terms:

• a sentence, in grammatical terms, includes a principal subject and predicate (conforming to Coode's "legal subject" and "legal action");
• modifying clauses can be used in sentences (as "sentence modifiers") to describe the context or fact situation, or both, in which the rule operates. (There is no grammat­ical difference between the "case" or "condition" as Coode's distinction might suggest).

The following are some of the principal ways in which later legislative counsel modified the Coode approach.

• The principal subject can be a non-personal subject

It is too restrictive to require the grammatical subject of every sentence to be a legal person (as Coode himself recognised). In many cases an inanimate or impersonal grammatical subject may be used with the principal predicate:

• declaratory statements,
• definitions, interpretation or explanatory provisions,
• application or referential provisions,
• general prohibitions applicable to anyone doing the prohibited action,
• when it is obvious which legal persons are affected,
• to provide continuity with a matter dealt with in an earlier sentence.

Subjects of these kinds should be used only so long as they give rise to no uncertainty as to the legal persons who are to comply with the provisions in the sentence.

Example 10

The following sentences illustrate the cases listed above:

declaratory:

The Guard Dogs Act 1985 is repealed.

definition:

In this Act, the expression "complaint" means an allegation that some person known or unknown has committed an offence".

application:

Section 25 of the Penal Code applies to persons convicted of an offence under this Act.

obvious subject:

Applications for a dealer's licence are to be made to a local government council.

continuity:

A warrant for arrest under this section may be issued by any Judge or magistrate.

• The principal predicate can be used more flexibly to state conclusions of law, as well as to provide for actions

Principal predicates are no longer concerned solely with actions. They are used to declare legal status or consequences.

• Making fuller use of passive verbs

Principal predicates are now more frequently in a passive tense than Coode suggested. The decision should be dictated by ease of use, but, as Coode insisted, only if there is no ambiguity about the legal persons who are to comply with the rule.

• Employ a wider range of auxiliary verbs

The verb in the principal predicate is not limited to verbs using the auxiliaries "may" or "must". This can be too restrictive. Although “shall” has traditionally been used, it is now widely accepted that it should not be used because of its ambiguity and because it is not used in common speech to impose obligations, and is unnecessarily legalistic.

Alternatives to “may” are also more frequently used, for example tp express a right, “is entitled” can be used; this avoids ambiguity about whether the provision confers a right or a power.

Finally, the present tense is now used to make a statement of legal consequence or legal status.

Example 11

The following sentences illustrate the use of other verb forms:

On receiving a complaint alleging a corrupt practice by a public officer, the Commissioner must investigate the conduct of that officer and of any other person who appears to the Commissioner to be concerned in the alleged corrupt practice.

A person commits an offence who knowingly obstructs a police officer when performing any function under this Act .

There is established by this Act an Institute by the name of the Legislative Drafting Institute of Utopia.

The tort of detinue is abolished.

• Context clauses can be used more flexibly than the case and condition

Different kinds of context clause

Though both are sentence modifiers, analytically, we may still distinguish:

• a clause that states the fact situation in which the rule operates (case); and
• a clause that states an action that triggers the rule (a condition).

Different uses of introductory words

Legislative counsel tend now not to use “where” to introduce a context clause as this connotes locality rather than conditionality or circumstance in general usage. Instead they increasingly prefer:

• "if" to introduce a context clause that describes the factual setting or general circumstances in which the rule operates or one describing an action or event that causes the rule to operate;
• "when" to introduce a context clause that describes an action or the event on the happening of which the rule takes effect.
• "unless" to introduce a clause describing an action, event or state of affairs that precludes the operation of the rule.

Flexible positioning in the sentence

Context clauses are not now routinely placed before the principal subject and verb in the sentence. That was necessary when sentences tended to be complex and detailed in order to allow readers to see whether the provision applied to their circumstances before going further into the sentence. Sentences today are typically shorter.

The order of the sentence components is dictated by sense and ease of understanding. It is more difficult to understand a subordinate clause without having read the principal clause. Sentences are easier to understand if the principal clause precedes the subordinate clauses, particularly with lengthy subordinate clauses. So, it is often clearer to put the subordinate clause after the main proposition. If the rule can operate in several alternative fact situations, it may be more convenient to set these out after the principal subject and predicate.

Example 12

A police officer may arrest a person if a reputable person reports to the officer that the person has committed an indictable offence.

An elected member of the council must vacate his or her seat -

1. when the notice for the election for the council is issued;
2. if the member fails to attend 3 consecutive meetings of the council, without obtaining the prior permission of the council;
3. if the member is appointed to a public office;
4. if, in the case of an appointed member, the appointment is revoked by the Minister.

3. Principal Characteristics of this Form of Drafting - What are they?

The account you have just studied suggests some of the principal characteristics of drafting approaches in parliamentary jurisdictions. The following features have traditionally distinguished these drafting approaches from those in other jurisdictions, particularly those having civil law systems, which tend to be cast in broader and more generalised language that puts consider­able emphasis on statements of principle. Policy objectives are implicit

Legislation does not have to articulate its policy objectives. Typically, these are left to be deduced from the terms of the legislation, Legislative counsel having drafted its provisions appropriately so as to convert the policy into legislative provisions.

• Fewer statements of general principles

Legislation rarely contains general principles governing legal relationships, from which particular requirements or applications have to be deduced. Since the function of the courts is to apply and interpret legislation, and not make it, Parliament must provide, and be seen to provide, a body of particularised rules covering all foreseeable cases or at least to authorise the making of subsidiary legislation for that purpose.

• Specific and detailed rules

Legislation provides specific rules to govern or regulate the actions of persons whose behaviour is to be subject to the legislative scheme. In consequence, it contains a good deal of detail, designed to provide precise and certain guidance about its application.

• Compression of matter

To minimise the number of legislative sentences, the same sentence may contain the complete rule and its context, and sometimes an exception to it. In addition to making the sentence long and detailed, such compression can lead sometimes to a complex structure.

• Drafting devices

In order to minimise the adverse effects of this particularisation in legislation, legislative counsel make frequent use of such devices as:

• definitions and interpretation provisions;
• concepts created uniquely for the statute.

• Technical legislative rules

Special rules governing the structure, operation and construction of written law are typically stated in an Interpretation Act and, to a much lesser extent, by the common law. Where these are silent or unsuitable, each legislative instrument has to provide its own technical rules on those matters.

• Relationship between provisions

Each proposition in a statute is treated as a separate enactment. Therefore, the exact relationship between different propositions on related matters must be made very clear. If that is not obvious from the context, linking words and cross-references must be provided (for example, "subject to section 5" or "without prejudice to section 6").

• Legalistic language

Since they provide legal rules, legislative sentences follow the language used in legal practice, as well as the terms used to describe established legal concepts. In addition, sentences tend to have a more formal style and vocabulary than is found in ordinary usage; they can become tortuous and convoluted and reliant on unnecessary legal jargon.

Although these features continue to be prominent in many jurisdictions based on parliamentary models, they are diminishing in others, for example in Australia and Canada. These changes are in large part motivated by concern about the usability problems that these features often entail. These Materials discuss these concerns and what can be done to address them.

4. Drafting Objectives

What should be the objectives for drafting in the 21st Century?

Many of the principal characteristic of legislative drafting outlined above make legislative texts harder to use and understand. Although they can be explained in terms of the historical and theoretical underpinnings of this form of drafting, these characteristics have been more recently called into question. Legislative counsel have increasingly turned to consider the expectations of those who read and apply legislation and they have begun developing techniques to facilitating this task. These techniques, which have often been pioneered in the name of plain language, benefit all users of legislation, including judges and legal practitioners, government administrators and, of course, members of the public who are affected by legislation. In this respect, legislation has much in common with other types of legal documents.

Activity 1

Before we look at some ideas on this, give thought to what qualities a typical user might be looking for from any legal document to which they are referred. Suggest five expectations to which users are likely to give priority.

What do users look for from legal documents?

When users of legal documents are asked this question, most say that they favour those documents that:

• tell them what they want to know,
• are easy to read and understand,
• are not obscure,
• use the shortest space,
• deal with all the necessary points,
• contain no contradictions,
• leave no doubts.

How can legislative counsel meet these expectations?

Legislative counsel should strive to produce texts that satisfy these expectations. By those standards a good legislative draft is one that communicates to users, in terms that are:

• capable of being complied with;
• clear;
• comprehensible;
• concise;
• complete;
• consistent
• certain.

Our task, then, is to give effect to all these objectives. Think of yourself as setting out to navigate these Seven C’s of Legislative Drafting.

Are these objectives equally important?

Most lawyers put the last of these objectives, certainty, as their first priority as they are looking for answers from legislation to their particular legal problems. They become con­cerned if they find ambiguity or a possibility of conflicting interpretations, or no answer at all. However, failure to give effect to the other objectives often contributes to uncertainty. For example:

• if the policy of the legislation is not communicated clearly, it may be construed in unintended ways, leaving those affected uncertain as to how they may act;
• if legislation does not cover the complete ground, it will be uncertain as to how matters not dealt with should be approached;
• legislation that is not concise, for example because it is wordy, long-winded and repetitious, may increase the likelihood of uncertainty about its meaning and application.

Tensions sometimes occur between these objectives. For example:

• in order to be certain, we may not be able to be very concise;
• the more detail we provide in the interests of completeness or certainty, the more there will be to understand;
• the more we must cover in dealing with a complex legislative scheme, to be certain and complete, the greater the problem of communicating clearly the essential nature of the scheme and ensuring that it can be fully complied with.

Despite these tensions, your principal aim should remain constant: do all you can to give effect to each of these objectives.

How can we best achieve these objectives?

These Materials are dedicated to encouraging you to adopt practices that contribute to these objectives. But there are seven basic practices that constitute their foundations.

1. Analyse and plan

When you start composing legislative sentences, make sure you already have a sound idea what you are setting out to communicate. This calls for:

• a clear grasp of the factual background and the existing law;
• a good understanding of the policy behind the legal change to be made;
• a decision on the options available to give effect to that policy;
• a preliminary view of what matters need to be covered by new legislation;
• an outline plan of how the legislation should be structured to present its provisions most effectively.

2. Provide a rational structure

Organise the contents of an instrument deliberately to reveal the basic structure and logical development of the legislative scheme and to make it as easy as possible for users to find what they may be looking for. This will be made more likely if:

• the key features of the legislation are prominent;
• there is a logical relationship between the parts and the whole;
• related matters are put into a rational sequence that emphasises the nature of their interconnection.

3. Follow drafting standards

Follow the standard drafting practices in your jurisdiction and, in your treatment of the subject-matter, draft consistently with related legislation. User expectations are formed by past use of legislation. You should be cautious about experimenting or innovating. An opportunity for that may arise when you are in a position to influence the direction of your drafting service!

4. Use an effective writing style

You should aim to make your text as easy to read as possible. This means:

• write in standard and grammatical English;
• address the issues directly;
• use language that is not pretentious or archaic;
• use sentence structures that are not overloaded or complicated.

5. Choose good presentation

Set out your drafts so that, when printed, the text is easy to work with, by ensuring that:

• plenty of "white space" appears on each page of the legislative text (the text is not densely packed);
• sentences are short, or use paragraphing to display component parts;
• longer texts are divided into Parts or Divisions;
• instructive visual aids are used, such as formulae, maps and diagrams.

6. Provide aids to finding and using

You can help users by providing devices that make it easier for them to find their way around the legislative text. These can include:

• intelligent section notes (or side-notes/shoulder notes);
• helpful headings for Parts, divisions and Schedules;
• road-maps (i.e. provisions indicating where matters are dealt with in the Bill)
• a table of contents/arrangement of sections;
• footnotes and marginal cross-references.

7. Check and scrutinise

As you complete each version of your draft text, look back at it through the eyes of someone coming to it for the first time. Once it is in an advanced stage of drafting it is unlikely that you will have time to make radical alterations to its form and organisation, but there are always opportunities to make useful improvements.

This task is easier if you put your draft to one side overnight and come back to it the next day for a fresh look. These are some changes you should consider:

• break long sentences into two or even more sentences, with the main topic in the first subsection, and the supporting elements in those that follow;
• format sentences to make them easier to read quickly, for example by using paragraphing;
• reduce unnecessary detail, by substituting broad terms or transferring the detail to definitions and interpretation provisions;
• remove superfluous words;
• substitute shorter expressions for those that are unnecessarily long;
• substitute modern forms of expression for archaic and obscure terms.

We will work with all these techniques in the Modules that follow.

REVIEW

In this Section you have been establishing a framework for the work to come on drafting skills and techniques. You should now have a clearer picture of how current practices have been influenced by the approaches evolved and developed over the last 150 years. In particular, you should understand the influence of Coode's analysis and system. You should also have a clear grasp of the qualities that well-drafted legislation exhibits and the principal ways by which Legislative Counsel can provide them.

At the end of this Section, you should be able to do the following:

• describe the way legislative drafting developed in the England and how that development has influenced the way that we draft today;
• provide an overview of the principal characteristics of legislative drafting in jurisdictions based on the British parliamentary model;
• establish the principal objectives for which legislative counsel should work and the fundam­ental practices that are most likely to contribute to achieving them.

Read again through the Essential Questions at the beginning of this Section. Are you satisfied that your work with them has enabled you to achieve the Section Objectives?

Do not expect to be able to use all that you have just learned when drafting new provisions. However, you should feel confident that you know now what you should be trying to put into practice when working on the later Modules. In particular, you should be able to recall the basic Coode thesis on the syntax of legislative sentences, the Seven C's and the seven principal approaches by which they can be secured. If you cannot, take time to confirm them by re-reading the appropriate parts.

After you leave this Section, you are unlikely to need to look back at the first three parts, as the ground is covered again in more detail later. But there is much to be said for reminding yourself from time to time about your Drafting Objectives and the methods for achieving them. Consider making a check-list of them, which you can keep close to your desk.

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